I feel like I have a moment for a breath for the first time in a month. I have time to breathe and even managed to work out last night. It has been pressing in the back of my mind, how to begin blogging after such a long vacation, but I decided to just jump right back in. Anything to help me reconnect.
So, law school has become more nuanced. I found myself taking notes for 25 minutes on the details of res ipsa loquitur negligence. Res ipsa loquitur means that the things speaks for itself. Which makes me wonder why we had to speak of it for several days.
So here is a window into 25 minutes of my torts class. These are my true unadulterated notes, so take them as you will, and just imagine hours of this each day:
10/20/2005, 9:12 AM Hypo: car ran into ditch, hitting telephone pole.
Could you give the instruction?
- Your verdict must be for plaintiff if you believe first defendant drove at an excessive speed, second defendant was thereby negligent. Third as a direct result of such negligence plaintiff sustained damage. Negligence or negligent as used in this instruction refers to the failure to use the care that an ordinarily reasonable person would use under the same or similar circumstances.
No you can not give this instruction, because there was no evidence of excessive speed.
- Your verdict must be for plaintiff if you believe:
Second, the automobile left the street and ran into the ditch
And third, from the facts in evidence and the reasonable inferences there from, you find such occurrence was the direct result of defendant's negligence and
Fourth, as a direct result of such negligence plaintiff sustained damage. (include paragraph on negligence instruction)
Yes. It is the fact of the accident that creates the inference of the negligence. This is the missouri instruction for res ipsa loquitur. The same paragraph on negligence would be there.
Suppose we have testimony that a car was going really fast and then in ran into a ditch. Could we submit jury instruction number 1? Do we have enough evidence to warrant that instruction? We have direct evidence of excessive rate of speed. If the jury believes that witness, then they can believe all the elements. If they don't believe the witness then they decide in favor of the defendant. It would be rare for a court to say that direct testimony of a witness isn't enough to go to jury. If you wanted to, could you just give the second instruction? Plaintiff calls the witness, who testifies that the car was speeding. Can plaintiff then submit the res ipsa instruction? When do you use the regular negligence instruction and when do use the res ipsa instruction. Res ipsa is not a separate tort, it is just a way of proving the standard negligence action by circumstantial evidence. How do you decide when to submit it as a res ipsa case? In the other negligence cases, you fill in the blank with the untaken precaution. The evidence explains how this accident happened. So the plaintiff fills in the specific precaution that the defendant failed to take. Then the jury decides if it's true, and if true was it negligent, and if negligent were the injuries the direct result.
IN res ipsa, we don’t know what the defendant did. We just know that they must have made some sort of mistake, or else the accident wouldn't have happened. Why did the car leave the road and run into the ditch. Is it because of speed, failure to keep control, failure to look. Without a witness we don't know. The res ipsa case is essentially proof of negligence by circumstantial evidence. But it is proof of general negligence by circumstantial evidence. The specific negligence case is when we do know what the defendant did.
If you have specific evidence of excessive speed, you could have direct evidence or you could have circumstantial evidence of speed. Testimony or length of skid marks, damage to the vehicle. But whether you have direct or circumstantial evidence you could still submit that specific instruction.
10/20/2005, 9:28 AM hypo: What if the plaintiff has a witness saying the car was going 60 mph and the defendant has a witness saying he was only going 30 mph. Could the plaintiff submit the res ipsa jury instruction if they wanted to? Why would you want to? Because then even if the jury believed the defendant's evidence, they could find for negligence. Plaintiff may think it was because of speeding, but if they bring the res ipsa case, they will not lose on the basis of the different witness. Regardless of whether he was speeding, he was still negligence. Res Ipsa Loquitur, the accident speaks for itself.
If it's undisputed, you have to submit under specific jury instruction. In a case where the evidence is inconclusive, the plaintiff has a good argument that she should get to the jury under the res ipsa instruction. Courts are split on that question. Majority say if you have specific evidence of negligence, you have to submit that. Majority says that if you have specific evidence, but notwithstanding that, you still have a negligence case under res ipsa, you could submit that jury instruction. This is really about principles of evidence. Really boils down to relevance. DO I have relevant evidence that someone was negligent? How can you evaluate circumstantial evidence?
In the banana peel cases we are trying to determine if the banana peel was there long enough for someone to have the responsibility of cleaning it. Some cases said yes, some said no. This is circumstantial evidence. We were really talking about evidence. IN res ipsa, it is different than those cases, because those are cases where you are proving specific negligence by circumstantial evidence. Res ipsa loquitur is different. It is proof of general negligence by circumstantial evidence. Something must have gone wrong and that something is negligent.
Some jurisdictions, insist that you bring only specific instruction when you have specific evidence. Some jurisdictions let you elect between specific instruction and res ipsa instruction. Some jurisdictions might let you present both. 10/20/2005, 9:38 AM
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